LAKHARAM Vs. DWARIKA

JUDGEMENT

(1.) THIS appeal by plaintiff is directed against the judgment and decree dated 6/5/2008 in Civil Appeal No. 2 -A/2008 confirming the judgment and decree dated 13/12/2007 in Civil Suit No. 37 -A/2005. Plaintiff's suit for declaration and permanent injunction has been dismissed.

(2.) PLAINTIFF brought a suit inter alia contending that the suit land was of the ownership of one Batai, S/o. Ramsevak. Since he was maintaining bad health and for treatment he required money, therefore, executed an agreement to sale on 13/2/2002 to transfer title of the suit land in favour of plaintiff by execution of sale deed. Ex. P/1 is the agreement to sale. However, sale deed could not be executed immediately, as Batai had gone to Gwalior for undergoing treatment. After coming back from Gwalior Batai died on 22/2/2002 and, therefore, instant suit is filed for a declaration that by virtue of agreement to sale dated 13/2/2002 plaintiff has acquired title over the suit land.

(3.) ON aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Trial Court upon critical evaluation of evidence on record dismissed the suit. On appeal, the first appellate court re -appreciated the entire evidence on record and found that as a matter of fact the factum of execution of aforesaid agreement to sale by Batai, as alleged by the plaintiff, has not been found proved. This finding has been recorded by adverting to the oral and documentary evidence on record, as were discussed in paras 11 to 14 of the impugned judgment. That apart, the agreement to sale by itself does not confer any title upon a party to it, as title of any immovable property can be transferred only by way of a registered instrument and not otherwise and, therefore, no claim of title over the suit land can be made on the basis of alleged agreement to sale dated 13/2/2002. As regards possession over the suit land, in para 16 the first appellate court has found that the evidence in that behalf is contradictory and, therefore, confirmed the findings of the trial court as regards the fact that the plaintiff has not been found to be in possession of the suit land and accordingly, dismissed the appeal.